Smith v. Carruth et al

Filing 86

ORDER & REASONS granting in part and denying in part 40 Motion for Summary Judgment. Signed by Judge Sarah S. Vance on 3/1/2017. (mmm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
FELISHA SMITH

CIVIL ACTION

VERSUS

NO. 15-4570

GRANT CARRUTH, ET AL.

SECTION “R” (5)

ORDER AND REASONS
Defendants Amite City, Amite City Police Department (ACPD) and
ACPD Police Chief Jerry Trabona move for summary judgment on plaintiff
Felisha Smith’s claims under 42 U.S.C. § 1983, and on Smith’s related state
law claims. 1 For the following reasons, the Court grants in part, and denies
in part, defendants’ motion.
I.

BACKGROUND
This civil case arises out of the alleged kidnapping and rape of plaintiff

Felisha Smith.

According to Smith’s amended complaint, Smith was

kidnapped and raped by defendant Grant Carruth on or around September
20, 2014. 2 At the time, Carruth was a police officer with ACPD. 3 According
to Smith, she placed an advertisement on an escort services website, and

1
2
3

R. Doc. 40.
R. Doc. 28 ¶ 10.
R. Doc. 40-2 at 2 ¶ 3; R. Doc. 40-8 at 56-57.

Carruth responded to the ad at about 12:00 a.m. and invited Smith to his
home. 4 Smith went to the address provided by Carruth, at which point
Carruth identified himself as an undercover officer and purported to place
Smith under arrest for prostitution. 5 Instead, Carruth drove Smith to a
private wooded area and raped her. 6 Smith also alleges that on August 11,
2014, Carruth kidnapped and sexually assaulted another victim, known as
“A.B.”7 On December 1, 2016, Carruth was convicted of third-degree rape
and kidnapping of Smith by the 21st Judicial District Court for the Parish of
Tangipahoa, Louisiana, and was sentenced to 8 years in state prison. 8
On September 18, 2015, Smith filed this lawsuit, 9 and Smith amended
her complaint on May 3, 2016. Smith alleges that Carruth’s acts violated her
Fourth and Fourteenth Amendment rights under the Constitution. 10 Smith
further alleges that Trabona is liable in both his individual and official
capacities and that Amite City and ACPD are liable under Monell v.
Department of Social Services of City of New York, 436 U.S. 658 (1978), for

R. Doc. 28 at 5 ¶ 15.
Id. ¶ 18.
6
Id. at 6 ¶ 20.
7
Id. at 4 ¶ 11.
8
Counsel for defendants communicated that Carruth was
convicted via fax letter. R. Doc. 71.
9
R. Doc. 1.
10
R. Doc. 28 at 9 ¶ 31.
2
4
5

their failure to supervise and train Carruth and otherwise prevent him from
raping Smith. 11 Smith also brings state law negligence claims, and seeks to
hold Amite City and Trabona liable for Carruth’s torts under a theory of
respondeat superior. 12 Smith seeks damages, attorneys’ fees, and costs. 13
Defendants now move for summary judgment, arguing there is no
evidence indicating that Trabona or anyone associated with ACPD had any
knowledge of Carruth’s alleged attack of A.B., and therefore there is no
evidence to link Carruth’s attack on Smith and the actions of Trabona, ACPD,
and Amite City.14 Additionally, Chief Trabona argues he is entitled to the
defense of qualified immunity. 15 In support, defendants submit the affidavit
of Trabona, as well as deposition testimony of Trabona and Detectives
Michael Moore and Dale Athmann of the Tangipahoa Parish Sheriff’s Office
(TPSO).16 Smith filed a response,17 and defendants replied.18 On January 31,

Id. ¶ 32.
Id. at 6-7 ¶ 26. Plaintiff’s amended complaint did not name
ACPD as a party, as Amite City Police Department is not a juridicial entity
separate and distinct from Amite City and is not amenable to suit. See Tracie
v. Foster, No. 07-5754, 2008 WL 1834466, at *2 (E.D. La. Apr. 23, 2008).
13
Id. at 10 ¶ 33.
14
R. Doc. 40.
15
R. Doc. 40-1 at 6.
16
R. Doc. 40-5 (Trabona Affidavit); R. Doc. 40-6 (Moore
Deposition); R. Doc. 40-7 (Athmann Deposition); R. Doc. 40-8 (Trabona
Deposition).
17
R. Doc. 45.
18
R. Doc. 51.
3
11

12

2017, Smith filed a sur-reply,19 and defendants filed a response to Smith’s
sur-reply.20

II.

LEGAL STANDARD
Summary judgment is warranted when “the movant shows that there

is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(a); see also Celotex Corp. v.
Catrett, 477 U.S. 317, 322-23 (1986); Little v. Liquid Air Corp., 37 F.3d 1069,
1075 (5th Cir. 1994). When assessing whether a dispute as to any material
fact exists, the Court considers “all of the evidence in the record but refrain[s]
from making credibility determinations or weighing the evidence.” Delta &
Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 398-99
(5th Cir. 2008).

All reasonable inferences are drawn in favor of the

nonmoving party, but “unsupported allegations or affidavits setting forth
ultimate or conclusory facts and conclusions of law are insufficient to either
support or defeat a motion for summary judgment.” Galindo v. Precision
Am. Corp., 754 F.2d 1212, 1216 (5th Cir. 1985); see also Little, 37 F.3d at
1075.

19
20

R. Doc. 67.
R. Doc. 70.
4

If the dispositive issue is one on which the movant will bear the burden
of proof at trial, the movant “must come forward with evidence which would
entitle it to a directed verdict if the evidence went uncontroverted at trial.”
Int’l Shortstop, Inc. v. Rally’s, Inc., 939 F.2d 1257, 1264-65 (5th Cir. 1991).
The nonmoving party can then defeat the motion by either countering with
evidence sufficient to demonstrate the existence of a genuine dispute of
material fact, or “showing that the moving party’s evidence is so sheer that it
may not persuade the reasonable fact-finder to return a verdict in favor of
the moving party.” Id. at 1265.
If the dispositive issue is one on which the nonmoving party will bear
the burden of proof at trial, the moving party may satisfy its burden by
merely pointing out that the evidence in the record is insufficient with
respect to an essential element of the nonmoving party’s claim. See Celotex,
477 U.S. at 325. The burden then shifts to the nonmoving party, who must,
by submitting or referring to evidence, set out specific facts showing that a
genuine issue exists. See id. at 324. The nonmovant may not rest upon the
pleadings, but must identify specific facts that establish a genuine issue for
trial. See, e.g., id.; Little, 37 F.3d at 1075 (“Rule 56 mandates the entry of
summary judgment, after adequate time for discovery and upon motion,
against a party who fails to make a showing sufficient to establish the
5

existence of an element essential to that party’s case, and on which that party
will bear the burden of proof at trial.” (quoting Celotex, 477 U.S. at 322)).

III. DISCUSSION
Smith’s federal claims are brought under 42 U.S.C. § 1983. Section
1983 provides:
Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory or the
District of Columbia, subjects, or causes to be subjected, any
citizen of the United States or other person within the
jurisdiction thereof to the deprivation of any rights, privileges, or
immunities secured by the Constitution and laws, shall be liable
to the party injured in an action at law, suit in equity, or other
proper proceeding for redress.
42 U.S.C. § 1983. The elements of a section 1983 cause of action are: (1) a
deprivation of rights secured by federal law (2) that occurred under color of
state law, and (3) was caused by a state actor. See Victoria W. v. Larpenter,
369 F.3d 475, 482 (5th Cir. 2004).
A.

Qualified Immunity

Defendants first argue that Chief Trabona is entitled to qualified
immunity. 21 Qualified immunity shields government agents, sued in their
individual capacities, “from liability for civil damages insofar as their

21

R. Doc. 40-1 at 6.
6

conduct does not violate clearly established statutory or constitutional rights
of which a reasonable person would have known.” Behrens v. Pelletier, 516
U.S. 299, 305 (1996) (citation omitted). The defense of qualified immunity
is unavailable in a suit against a state actor in his official capacity, but is
available in situations in which a government actor is sued in his individual
capacity. Kentucky v. Graham, 473 U.S. 159, 166 (1985).
If a party asserts the defense of absolute or qualified immunity in good
faith, the burden shifts to the nonmovant to rebut it. Disraeli v. Rotuna, 489
F.3d 628, 631 (5th Cir. 2007). To rebut an absolute or qualified immunity
defense, the plaintiff may not simply rely on allegations in the pleadings, but
must produce competent summary judgment evidence raising a genuine
issue of material fact. Morales v. Boyd, 304 F. App’x 315, 318 (5th Cir.
2008). Specifically, the plaintiff must identify facts supporting the
conclusion that (1) “the defendant’s conduct violated [the plaintiff’s]
constitutional right” and (2) the “defendant’s conduct was objectively
unreasonable in light of clearly established law at the time of the violation.”
Terry v. Hubert, 609 F.3d 757, 761 (5th Cir. 2010) (citation omitted). “The
very action in question need not previously have been held unlawful for a
constitutional violation to be clearly established.” Id. at 763. Instead, the
“unlawfulness [of the defendant’s conduct] must be apparent,” and “the
7

contours of the right must be sufficiently clear that a reasonable official
would understand that what he is doing violates that right.” Id. Finally, in
deciding this question, the facts alleged must be taken in the light most
favorable to the party asserting the injury. Brosseau v. Haugen, 543 U.S.
194, 197 (2004).
As a threshold matter, defendants argue that there was no underlying
constitutional violation because Carruth was off-duty and his actions were
“purely private.”22 There is no question, and defendants do not dispute, that
rape and kidnapping violate clearly established rights if committed by state
actors under color of law. See, e.g., Doe v. Taylor Indep. Sch. Dist., 15 F.3d
443, 451-52 (5th Cir. 1994) (holding that sexual abuse and violation of bodily
integrity clearly violate substantive due process rights under Fourteenth
Amendment); McClendon v. City of Columbia, 305 F.3d 314, 335-36 (5th
Cir. 2002) (same). Instead, defendants argue Carruth was not acting under
color of law.
Defendants are correct that not every action is under color of law
simply because the actor is a public official. Smith v. Winter, 782 F.2d 508,
512 (5th Cir. 1986). However, the definition of “acting under color of state
law” in section 1983 actions is broad, and covers situations in which the

22

R. Doc. 40-1.
8

defendant possesses power “‘by virtue of state law and made possible only
because the wrongdoer is clothed with the authority of state law.’” West v.
Atkins, 487 U.S. 42, 49 (1988) (quoting United States v. Classic, 313 U.S.
299, 326 (1941). Other cases have defined “under color of state law” as acting
under “pretense of law.” Screws v. United States, 325 U.S. 91, 111 (1945). A
defendant in a section 1983 suit “acts under color of state law when he abuses
the position given to him by the State.” West, 487 U.S. at 50 (citing Monroe
v. Pape, 365 U.S. 167, 172 (1961)).
Further, this Circuit has long recognized that “whether a police officer
is acting under color of law does not depend on duty status at the time of the
alleged violation,” United States v. Tarpley, 945 F.2d 806, 809 (5th Cir.
1991) (citation omitted), and officials who act for purely personal reasons do
not “necessarily fail to act ‘under color of law.’” Id. (quoting Brown v. Miller,
631 F.2d 408, 411 (5th Cir. 1980)).
Smith testified that when she encountered Carruth, he flashed his
police badge, handcuffed her, Mirandized her, and placed her under arrest.23
She said Carruth then put her in the back of his vehicle, and threatened her
with prostitution charges and jail. 24 According to Smith, Carruth continued

23
24

R. Doc. 45-2 at 3-4; R. Doc. 40-10 at 11.
Id. at 12-13.
9

to drive with Smith until he reached a secluded area, drew his weapon, and
raped her. Smith’s testimony regarding her rape and kidnapping show a
violation of clearly established rights that occurred under color of state law.
Carruth’s behavior resembles the behavior of the defendant-officer in United
States v. Tarpley. 25 In Tarpley, the Fifth Circuit affirmed the finding that
Tarpley acted under color of law when he assaulted a man who had an affair
with Tarpley’s wife in Tarpley’s home. The Tarpley court noted that Tarpley
used his service weapon, identified himself as a police officer, claimed to have
authority to assault the victim by virtue of being an officer, and that the “air
of official authority pervaded the entire incident.” 945 F.2d at 809. As in
Tarpley, there is evidence that Carruth used his badge and weapon,
identified himself as a police officer, threatened to use his authority to arrest,
charge, and jail the victim, and used his position of authority to intimidate
the victim into compliance. This is sufficient evidence for a jury to find that
Carruth acted under pretense of law, that he took actions possible only
because of the power granted to him under state law, and that he abused this
authority. Defendants’ threshold argument that there was no constitutional

Tarpley was a criminal case and evaluated “under color of law”
in the criminal statutes 18 U.S.C. §§ 241 and 242, but the meaning is the same
for both criminal and civil statutes, and Tarpley cites to civil cases for its
definition. 945 F.2d at 808-09.
10
25

violation is thus unavailing. Defendants’ citation to two out-of-circuit cases
with different facts does not alter that conclusion, especially in light of
Tarley. 26
That Carruth acted under color of state law does not end the inquiry.
Plaintiff not only seeks to hold Carruth liable for his actions, she also seeks
to impose liability on Trabona. Regarding Trabona’s claim of qualified
immunity, Smith bears the burden to demonstrate that Trabona’s conduct
violated clearly established law. Salas v. Carpenter, 980 F.2d 299, 306 (5th
Cir. 1992). Thus, to hold Trabona personally liable, Smith must show not
only a violation of her clearly established rights, but also that Trabona’s
conduct was objectively unreasonable in light of the existence of a clearly
established theory of supervisory liability. See Taylor, 15 F.3d at 454-456.
Smith’s amended complaint asserts two theories of supervisory
liability to hold Trabona liable. Specifically, her complaint alleges that (1)
Trabona is liable because he was aware of Carruth’s previous attack on A.B.
and failed to stop Carruth from attacking Smith, and (2) that Trabona failed

R. Doc. 40-1 at 10 (citing Roe v. Humke, 128 F.3d 1213, 1216 (8th
Cir. 1997) (police officer was not acting under color of law when he sexually
assaulted minor because he was not on duty, not in uniform, not wearing a
badge, and not carrying weapon); Almand v. DeKalb County, 103 F.3d 1510,
1514-15 (11th Cir. 1997) (police officer not acting under color of state law
when he forcibly broke into woman’s apartment and raped her).
11
26

to supervise and/or train Carruth. 27 In terms of the first theory, it is clearly
established in this circuit that supervisors of police officers can be liable for
the actions of their officers, even if they did not participate in those actions,
if the supervisor “knew or should have known that the allegedly
unconstitutional acts were occurring and [the supervisor] acquiesced in
them.” Wanger v. Bonner, 621 F.2d 675, 680 (5th Cir. 1980) (upholding jury
instruction).
As to plaintiff’s allegation that Trabona was aware that Carruth
committed the first attack on A.B., Trabona contends that there is no
evidence to support that allegation. Thus he could not have known that the
attack on Smith was likely to occur. The evidence in the record confirms
Trabona’s position, and there is no genuine dispute of fact as to whether
Trabona knew of Carruth’s attack on A.B. before Smith was attacked.
According to the Tangipahoa Parish police report, A.B. was attacked on
August 11, 2014.28 TPSO Detective Moore was assigned to the case. Moore
testified that until Carruth was arrested (after the Smith attack), Moore had
not discussed Carruth with anyone from Amite City.29 Moore was also clear
that ACPD had no involvement with the investigation of Carruth until after

27
28
29

R. Doc. 28 at 4-9.
R. Doc. 67-1 at 15.
R. Doc. 40-6 at 87.
12

Carruth was arrested. 30 Moore said he had no knowledge that A.B. reported
her attack to ACPD or Chief Trabona. 31 Additionally, he testified that despite
Amite City’s location in Tangipahoa Parish, TPSO and ACPD are not
affiliated in any way. 32 Moore also testified that to his knowledge, ACPD was
not notified via email of a description of a person of interest in the A.B. case. 33
Detective Dale Athmann of TPSO was the lead detective on the Smith
attack. He testified that his involvement with the A.B. investigation was
limited to showing A.B. a photo lineup. 34 Athmann said he was not aware of
the A.B. attack until after Smith was attacked, so that he could not have
informed ACPD about Carruth’s possible involvement with the A.B. attack
before Smith was attacked. 35 Athmann, like Moore, testified that he did not
contact Trabona or anyone else with ACPD regarding Carruth until after
Smith was attacked. 36
Finally, the record contains an affidavit and deposition testimony from
Trabona. Trabona attests that A.B. never reported her attack to him or the
ACPD, and that neither Trabona nor anyone else at ACPD (aside from

30
31
32
33
34
35
36

Id. at 55.
Id. at 111-12.
Id. at 113-14.
Id. at 122. Moore did admit that he was “not certain.” Id.
R. Doc. 40-7 at 10.
Id. at 35.
Id. at 58.
13

Carruth) had knowledge of the A.B. attack until after Smith was attacked.37
Further, Trabona testified that he did not know anything about Carruth and
either A.B. or Smith until after Carruth was arrested. 38 In fact, Trabona
testified that he called the Sheriff of Tangipahoa Parish to tell him that he did
not appreciate being kept in the dark. 39
For purposes of qualified immunity, this lack of evidence indicates that
Smith has not met her burden to show that Trabona knew of Carruth’s
previous actions and failed to stop him from attacking Smith. At this stage,
Smith cannot rest on the allegations in her complaint that Trabona or others
within the ACPD knew of Carruth’s attack on A.B. Instead, she must submit
evidence indicating there is at least a factual dispute about Trabona’s
knowledge. See Mitchell v. Forsyth, 472 U.S. 511, 526 (1985). Smith has
failed to do so. Therefore, Trabona’s conduct was not objectively
unreasonable, and Trabona is entitled to qualified immunity against Smith’s
claims that Trabona knew or should have known that Carruth would attack
Smith.
Next, Smith asserts that Trabona is liable for his failure to train or
supervise Carruth in a manner that would have prevented Carruth from

37
38
39

R. Doc. 40-5 at 2-3 ¶¶ 6, 11-13.
R. Doc. 40-8 at 102.
Id.
14

violating her rights. The Fifth Circuit has adopted a three-part test for
individual supervisory liability in the context of police officers. See Taylor,
15 F.3d at 452. The test requires plaintiffs to show “1) the police chief failed
to supervise or train the officer, 2) a causal connection existed between the
failure to supervise or train and the violation of the plaintiff’s rights, and 3)
such failure to supervise or train amounted to [] deliberate indifference.” Id.
at 452-53 (quotation omitted). Therefore, Smith cannot overcome Trabona’s
qualified immunity without showing that Trabona’s failure to train or
supervise was objectively unreasonable in light of the requirement not to be
deliberately indifferent to her rights. See Hare v. City of Conrinth, Miss., 135
F.3d 320, 327-28 (5th Cir. 1998) (explaining interaction between qualified
immunity’s objective unreasonableness standard with failure to train’s
deliberate indifference standard); see also Thompson v. Upshur Cty., TX,
245 F.3d 447, 460 (5th Cir. 2001) (noting that when a defendant moves for
summary judgment based on qualified immunity on deliberate indifference
claims, plaintiff must show that “all reasonable officials similarly situated
would have then known that the [failure to train]” constituted deliberate
indifference in violation of the Constitution).
As to the first prong, the evidence on training is that the ACPD had a
field officer training policy where the sergeants would take new hires on “ride
15

alongs” to teach them “what to do out there.”40 ACPD also had a policy of
requiring at least 20 hours yearly of training in subjects including use of
force, weapons training, hand-to-hand combat training, first aid, and legal
training.41 Trabona also testified that he was unclear as to his department’s
disciplinary policy and that ACPD did not read or explain its policy and
procedural manual to its officers. 42
The existence of ACPD’s field officer training policy, the 20 hour
requirement, and policy and procedure manual is evidence that ACPD had
some training. Smith contends that this training is insufficient, but points to
no specific deficiencies in the training itself. But even assuming that there
were deficiencies in ACPD’s training policies, Smith has submitted no
evidence that this “failure” was causally connected to the violation of her
rights or that the failure to supervise or train amounted to deliberate
indifference. Merely showing that additional training would have been
helpful or that the injury “could have been avoided” if the employee had
better or more training is insufficient. Connick v. Thompson, 563 U.S. 51, 68
(2011).

40
41
42

R. Doc. 40-8 at 15.
Id. at 42-43.
Id. at 66, 103.
16

In this context, a showing of deliberate indifference generally requires
“a showing ‘of more than a single instance of the lack of training or
supervision causing a violation of constitutional rights.’”

Burge v. St.

Tammany Parish, 336 F.3d 363, 370 (5th Cir. 2003) (quoting Upshur Cty.,
245 F.3d at 459) (Burge II); see also Thompson, 563 U.S. at 62. “A plaintiff
must demonstrate at least a pattern of similar violations arising from
training or supervising that is so clearly inadequate as to be obviously likely
to result in a constitutional violation.” Brumfield v. Hollins, 551 F.3d 322,
329 (5th Cir. 2008) (internal modifications and quotation omitted). Further,
the plaintiff must demonstrate that the supervisor whose alleged deliberate
indifference caused the violation had actual or constructive knowledge of the
pattern of similar violations. See Pineda v. City of Houston, 291 F.3d 325,
330 (5th Cir. 2002). And while there is a limited exception for singleincident liability, this exists only “where the facts giving rise to the violation
are such that it should have been apparent to the [supervisor] that a
constitutional violation was the highly predictable consequence of a
particular policy or failure to train.” Burge II, 336 F.3d at 373 (citation
omitted).
Smith does not offer evidence to support a pattern. As described above,
Trabona was not aware of the first attack on A.B. There is no evidence of a
17

complaint from A.B. to Trabona or the ACPD. Additionally, Trabona testified
that Carruth had a clean record before Trabona hired him and that there had
been no complaints regarding Carruth between the time he was hired and
when Trabona suspended him after his arrest.43 Smith has produced no
evidence that anyone complained about Carruth’s behavior before his
attacks, and no evidence that other officers with ACPD committed similar
violations. Thus, Smith has failed to show a “pattern of similar violations”
that would give rise to failure to train or supervise liability.
Further, the limited single-incident liability exception does not apply
here because there is no evidence that Carruth’s attack was the “highly
predictable consequence” of his alleged lack of training. 44 Brumfield, 551
F.3d at 329. Everyone, let alone police officers, should know not to rape, and
courts have consistently rejected “obvious” failure to train arguments when
common sense dictates that the violation should not require training to
avoid. See, e.g., Walker v. City of New York, 974 F.2d 293, 299-300 (2d Cir.

R. Doc. 40-8 at 28, 45.
The Fifth Circuit described circumstances where it would be
appropriate to find failure-to-train liability based on a single incident in
Brown v. Bryan Cty., OK, 219 F.3d 450 (5th Cir. 2000). In Brown, the court
noted that police officers regularly encounter situations in which use of force
will be necessary, and therefore it is obvious and highly predictable that a
total failure to train officers on use of force will result in excessive force
violations. Id. at 462. Based on this obviousness, the single-incident
exception was appropriate. Id. These circumstances are not present here.
18
43

44

1992) (rejecting failure to train not to perjure and prosecute the innocent
argument); Andrews v. Fowler, 98 F.3d 1069, 1077 (8th Cir. 1996) (“In light
of the regular law enforcement duties of a police officer, we cannot conclude
that there was a patently obvious need for the city to specifically train officers
not to rape young women.”); Barney v. Pulsipher, 143 F.3d 1299, 1308 (10th
Cir. 1998) (“Specific or extensive training hardly seems necessary for a jailer
to know that sexually assaulting inmates is inappropriate behavior.”). It goes
without saying that police officers should not require training or special
supervision to know not to rape and kidnap.
Because Smith has not met her burden to show a causal connection
between any alleged failure to train or supervise Carruth and the violation of
her rights, Trabona is entitled to qualified immunity on Smith’s failure to
train/supervise claims. Therefore, as Trabona has qualified immunity as to
all of Smith’s section 1983 claims against him in his individual capacity,
Trabona is entitled summary judgment as to these claims.
B.

Liability of Amite City and Trabona in his Official
Capacity

Smith’s suit also seeks to hold Amite City and Trabona (in his official
capacity) liable for the actions of Carruth. A suit against a government officer
“in his official capacity” is the same as a suit against the government entity
of which he is an agent. See Burge v. Parish of St. Tammany, 187 F.3d at
19

468 (5th Cir. 1999) (citing McMillian v. Monroe Cty., Ala., 520 U.S. 781, 78485 (1997)) (Burge I). Therefore, for the purposes of this section the liability
of Trabona and the liability of Amite City will be treated as one in the same.
In section 1983 suits, municipalities cannot be held liable under a
theory of respondeat superior. Pineda, 291 F.3d at 328. Instead, the Court
must apply the Monell test, which ensures that municipalities are held
responsible only for “their own illegal acts.” Connick v. Thompson, 563 U.S.
51, 60 (2011) (emphasis in original).

Section 1983 municipal liability

requires proof of three elements: (1) a policymaker, (2) an official policy or
custom, and (3) a violation of constitutional rights whose “moving force” is
that policy or custom. Davis v. Tarrant Cty., Tex., 565 F.3d 214, 227 (5th
Cir. 2009) (citations omitted).
Thus, a plaintiff seeking to impose liability on a municipality under
section 1983 must “identify a municipal ‘policy’ or ‘custom’ that caused the
plaintiff’s injury.” Bd. of Cty. Comm’rs of Bryan Cty. v. Brown, 520 U.S.
397, 403-04 (1997). A policy need not itself be unconstitutional to satisfy
Monell. City of Canton v. Harris, 489 U.S. 378, 387 (1989). The Fifth Circuit
has identified at least three ways in which plaintiffs may meet their burden
to show a policy or custom. See Burge I, 187 F.3d at 471. The first two involve
direct action by a “policymaker,” either in the form of generally applicable
20

policies or specific, directed actions. Id. The third involves a failure to act
by policymakers when “the need to take some action to control [its agents]
‘is so obvious, and the inadequacy of existing practice so likely to result in a
violation of constitutional rights, that the policymaker . . . can reasonably be
said to be deliberately indifferent to the need.’” Id. (quoting Canton, 489 U.S.
at 390) (internal modifications omitted).
Smith’s alleged basis for Monell liability is that Trabona and Amite City
adopted policies and customs that caused the violation of her rights, and that
defendants’

failure

to

train/supervise

Carruth

evinces

deliberate

indifference. Defendants’ motion for summary judgment argues that ACPD
had no policy or custom that can fairly be called the “moving force” behind
the violation of Smith’s rights, and that their failure to stop Carruth was not
deliberate indifference to a risk that Carruth would violate Smith’s rights. 45

R. Doc. 40-1 at 12-13. Smith argues in her response that
defendants did not move for summary judgment as to her failure to train and
“failure of policy” claims. See R. Doc. 45 at 17. But defendants moved for
summary judgment on all of Smith’s section 1983 claims, and they point out
the lack of evidence establishing any causal link between the actions, policies,
or customs of defendants and the violation of Smith’s rights. See R. Doc. 401 at 12-13. Therefore, Smith bears the burden of showing a dispute of
material fact for all of her section 1983 claims, and cannot simply allege
without support that defendants have not moved for summary judgment on
all of her claims. See Celotex, 477 U.S. at 322-23.
21
45

1.

Policies or Customs

As to Smith’s first basis for Monell liability, Smith identifies two
“unwritten” policies or customs that she argues caused the violation of her
rights. First, she points to Trabona’s alleged policy of requiring women to
come into the police department to file a written complaint against officers
and requiring the complainants to sign a form that acknowledges that they
can be prosecuted if they are not telling the truth.46 Second, she argues
Trabona had a custom of allowing his officers to use their badges and
handcuffs “to get women.” 47
As to the first policy, Trabona testified that the police department
requires certain complaints regarding officer conduct to be made in person. 48
Smith argues that this policy is applied against women in a discriminatory
manner and that requiring women to come into the department to report
misconduct discourages victims from actually filing complaints. 49

But

Trabona’s testimony indicates that this “in-person” complaint policy is not
limited to women making complaints. Although Trabona testified that one
reason for this policy is to prevent “a man” from being falsely charged, he

46
47
48
49

R. Doc. 45 at 12.
Id. at 20.
R. Doc. 40-8 at 45-47.
R. Doc. 45 at 19.
22

also said the policy applies to situations in which a person, male or female,
complained about a rude officer who pulled him or her over. 50
Regardless, even if the policy was as Smith alleges, her argument that
it was the moving force behind the violation of her rights is meritless. The
“moving force” analysis requires that “rigorous standards of culpability and
causation . . . be applied to ensure that the municipality is not held liable
solely for the actions of its employee[s].” Bryan Cty., 520 U.S. at 405; see
also Mason v. Lafayette City-Par. Consol. Gov’t, 806 F.3d 268, 280 (5th Cir.
2015) (holding that moving force inquiry requires showing of causation and
culpability).

As to causation, “a plaintiff must show a ‘direct causal

connection . . . between the policy and the alleged constitutional
deprivation.’” Mason, 806 F.3d at 280 (quoting Fraire v. City of Arlington,
957 F.2d 1268, 1281 (5th Cir. 1992)). “The “moving force” inquiry imposes a
causation standard higher than “but for” causation.” Id. As to culpability, the
applicable standard in this context is deliberate indifference, or a showing
that the City “promulgated the policy with ‘deliberate indifference’ to the
known or obvious consequences that a constitutional violation would result.”
Id. (quoting Piotrowski v. City of Houston, 237 F.3d 567, 579). “Heightened
negligence is insufficient to satisfy this standard.” Id.

50

Id. at 47-48.
23

Smith fails on both causation and culpability. There is no evidence of
a direct causal connection between this policy and Carruth’s attack. Smith
submits no evidence that this policy actually discouraged complaints or that
women would have filed complaints against any officer, much less Carruth,
but for this policy. And there is no evidence suggesting that but for this
policy, the attack on Smith would not have occurred. Smith’s argument that
this policy “transmits the wrong message to Carruth” 51 falls flat under
Monell’s causation standard. There is simply no evidence that this policy was
the “moving force” behind the violation of Smith’s rights. See Lewis v. Pugh,
289 F. App’x 767, 775-76 (5th Cir. 2008) (rejecting argument that inadequate
complaint policy was moving force behind police officer’s rape because there
was no direct causal link between policy and constitutional violation).
As to culpability, given the lack of evidence indicating a risk of
Carruth’s behavior, there is no basis to find that defendants adopted this
policy with “deliberate indifference to the known or obvious consequences
that a constitutional violation would result.” Mason, 806 F.3d at 280
(citation omitted).

Without evidence of the risk of Carruth’s violating

Smith’s rights, much less defendants’ awareness of said risk, it cannot be said

51

R. Doc. 45 at 14.
24

that this policy was adopted deliberately and without regard to that risk. See
Burge II, 336 F.3d at 371.
The second “policy” argued by Smith can be distilled into an allegation
that Trabona acquiesced in his officers’ use of their badges and handcuffs to
date women and engage in sexual activities with them. Smith points to
Trabona’s testimony that he tells his officers that their badges “will get
[them] in trouble with women,” because women are attracted to men in
uniform.52 Trabona also testified that he thinks he remembers telling his
officers not to use their handcuffs for “kinky stuff.”53
As a threshold matter, Trabona’s statements do not suggest that ACPD
had a policy or custom to allow officers to use their badges or handcuffs in
romantic pursuits. Further, Smith submits no evidence that police officers
persistently or commonly used their badges and handcuffs in romantic
pursuits so that such conduct fairly represents ACPD policy. Unwritten
policies or customs will not be considered “official policy” under section 1983
unless they qualify as “persistent, widespread practice . . . , [that] is so
common and well settled as to constitute a custom that fairly represents
municipal policy.” Webster v. City of Houston, 735 F.2d 838, 841 (5th Cir.

52
53

R. Doc. 40-8 at 106-108.
Id. at 105.
25

1984) (en banc). Indeed, other than Carruth’s alleged conduct, Smith has
not produced evidence that any ACPD officer misused his handcuffs and
badge. “[I]solated violations are not the persistent, often repeated, constant
violations that constitute custom and policy.” Mason, 806 F.3d at 280
(quotation omitted).
Because Smith cannot show that the policies she complains of were the
moving force behind the violation of her rights and were adopted with
deliberate indifference, her section 1983 claims for these policies fail.
2.

Failure to Train/Supervise

Smith’s final basis for section 1983 Monell liability is that defendants’
failure to train and/or supervise caused the violation of her rights. 54 In
limited circumstances, a municipality’s failure to train “may rise to the level
of an official government policy for purposes of [section] 1983.” Thompson,
563 U.S. at 61. “A municipality’s culpability for a deprivation of rights is at
its most tenuous where a claim turns on a failure to train.” Id. (citing
Oklahoma City v. Tuttle, 471 U.S. 808, 822-23 (1985). The standard of proof
required to establish defendants’ failure to train/supervise is the same as
required for Trabona’s alleged individual failure to train/supervise Carruth.

Smith uses “train” and “supervise” interchangeably and does
not flesh out her claims individually as to her attempt to show deliberate
indifference.
26
54

See Taylor, 15 F.3d at 453 (“The Court’s reasoning [in City of Canton v.
Harris] in assessing a municipality’s liability [for failure to train/supervise]
leads us to use the same standard in assessing an individual supervisor’s
liability under [section] 1983.”); Roberts v. City of Shreveport, 397 F.3d 287,
293 (5th Cir. 2005). As above, Smith must show a causal connection between
the failure to supervise or train and the violation of her rights, and that such
failure to supervise or train amounts to deliberate indifference. Thompson,
563 U.S. at 61; see also Mesa v. Prejean, 543 F.3d 264, 274 (5th Cir. 2008).
Merely showing that additional training would have been helpful or
that the injury “could have been avoided” if the employee had better or more
training is insufficient. Thompson, 563 U.S. at 68. Plaintiff must also show
culpability; she must establish defendants’ “conscious disregard for the
consequences of their action—the ‘deliberate indifference’—necessary to
trigger municipal liability.” Id. at 62 (quoting Bryan Cty., 520 U.S. at 407).
Further, the causation prong will not be satisfied without a showing that the
alleged training deficiency was the “moving force” behind the violation. Id.
at 59 n.5 (citing City of Canton, 489 U.S. at 389). In other words, failure to
train liability here requires a forceful showing of both culpability and
causation.

27

In City of Canton, Ohio v. Harris, the Supreme Court explained that
deliberate indifference in failure to train/supervise cases can be shown either
by establishing that the need to train is so obvious and so likely to result in
the violation of constitutional rights, or by showing a failure to act in
response to repeated complaints of constitutional violations. 489 U.S. at
390, 390 n.10. Again, Smith does not show that the failure to train was so
obvious and so likely to result in the violation of her rights. There is no
evidence of a pattern of similar violations arising from a lack of training or
supervision, and the “single-incident” exception is unavailable for the same
reasons cited earlier. 55 See Brumfield, 551 F.3d at 329; Burge II, 336 F.3d at
372. Therefore, Smith has not shown deliberate indifference on this basis.
As to failure to act in the face of complaints of previous violations, this
fails for the same reasons Smith’s claim against Trabona in his individual
capacity fails. There is no evidence of repeated complaints of constitutional
violations. 56 Although there was a previous incident involving Carruth, there
is no evidence that anyone associated with ACPD had knowledge of that
incident before Smith was attacked. Further, there is no evidence of previous
violations by any ACPD officer, and a fortiori there is no evidence that

55
56

See p. 18, note 44, supra.
See pp. 17-18, supra.
28

anyone associated with ACPD had knowledge of those violations. Finally,
Smith submits no evidence even suggesting Trabona or ACPD had a reason
to believe that previous violations occurred.
In response to the complete lack of evidence that defendants were
aware of a pattern of violations, Smith responds that 1) the evidence does
“not confirm” that Trabona and/or ACPD did not know about Carruth’s
attack on A.B.; 2) that TPSO pulled Carruth over while driving a vehicle that
matched the victim’s description days after A.B.’s attack; 3) that there is
evidence that someone with ACPD told Carruth about a prostitute and
therefore was aware that Carruth used prostitutes; and 4) that the Court
should discount Trabona’s affidavit and testimony because of alleged
inconsistencies between the affidavit and Trabona’s deposition.57

These

arguments are unavailing.
First, defendants do not have the burden to prove that Trabona and
ACPD were unaware of the attack on A.B. As plaintiff, Smith bears the
burden to demonstrate this knowledge, and defendants can meet their
burden on summary judgment by merely pointing out that the evidence in
the record is insufficient. See Celotex, 477 U.S. at 325. Smith must, with

57

R. Doc. 45 at 7-14.
29

evidence, set out specific facts showing a genuine dispute of fact exists. Id.
at 324. She has failed to do so.
Second, that TPSO pulled over Carruth days after the A.B. attack does
not create an issue of fact as to ACPD’s awareness. Former TPSO patrol
officer Christopher Sollie attests that after A.B. was attacked, TPSO sent out
a departmental message with the victim’s description of her assailant and his
vehicle.58 About two days later, Sollie stopped a vehicle that matched the
description.59 Sollie identified the driver as Carruth, let Carruth go, and
reported the stop to his superior at TPSO.60 But there is no evidence that
Sollie or anyone else at TPSO told ACPD about this stop. That TPSO, an
entity unaffiliated with ACPD, stopped Carruth in August is not evidence that
ACPD was aware of the stop. And given the lack of evidence to suggest that
Trabona or ACPD was aware of the stop or Carruth’s attack on A.B., any
inference of knowledge based on the stop would be unreasonable.
Third, Smith argues that Carruth admitted to his arresting officers that
someone with ACPD told him about a prostitute, and therefore it can be
inferred that someone with ACPD knew Carruth consorted with prostitutes. 61

58
59
60
61

R. Doc 45-2 at 220 ¶¶ 3-4.
Id. ¶ 6.
Id. at 221 ¶¶ 8-9.
R. Doc. 67 at 3; R. Doc. 67-1 at 7.
30

This argument fails because soliciting prostitutes is not sufficiently similar
to rape and kidnapping. A pattern of violations requires more than “any and
all bad or unwise acts[;]” the “prior acts [must] be fairly similar to what
ultimately transpired.” Estate of Davis v. City of N. Richland Hill, 406 F.3d
375, 383 (5th Cir. 2005) (citations omitted).
Finally, Trabona’s affidavit and testimony are perfectly consistent in
terms of Trabona’s lack of knowledge regarding A.B. and Carruth, and his
lack of knowledge that ACPD had any awareness about A.B. and Carruth.
Therefore, Smith has failed to carry her burden in showing specific factual
disputes as to the defendants’ awareness of Carruth’s past behavior.
In sum, Smith seeks to hold defendants liable for their failure to train
and/or supervise Carruth, arguing that this was deliberate indifference to the
obvious risk that Carruth would attack Smith. But there is no evidence
suggesting that the defendants were aware of Carruth’s attack on A.B., there
is no evidence suggesting that defendants were aware of any previous
complaints regarding a pattern of violations, and there is no evidence
suggesting that anyone even complained about Carruth. Therefore, it cannot
be said that defendants were indifferent to any risk, much less deliberately
so. Without some showing that defendants chose to ignore an obvious risk,
there is no deliberate indifference. See Bryan Cty., 520 U.S. at 411; Canton,
31

489 U.S. at 389. And as to supervision, there is no deliberate indifference
because defendants had no knowledge, actual or constructive, of any reason
for additional supervision. See Bryan Cty., 520 U.S. at 411-13.
Even if Smith could show deliberate indifference, she has failed to
show that the failure to train or supervise was the moving force behind the
violation of her rights. Again, police officers should not need training to
know not to rape, and it cannot be said that a lack of this training, without
more, caused Carruth to rape Smith.

Therefore, Smith’s failure to

train/supervise claims fail. See Lewis, 289 F. App’x at 771-73 (rejecting
failure to train/supervise claim against police department after officer raped
victim).
For the foregoing reasons, summary judgment in defendants’ favor is
warranted on all of Smith’s section 1983 claims.
C.

State Law Claims 62

Defendants also move for summary judgment on Smith’s Louisiana
tort claims.

As to Trabona, Smith asserts claims of negligent hiring,

negligent training, and negligent supervision.63 She also seeks to hold

Because defendant Carruth did not move for summary judgment
on Smith’s federal claims, those claims remain, and the Court retains subject
matter jurisdiction.
63
R. Doc. 28 at 7-8 ¶ 26.
32
62

defendants vicariously liable through respondeat superior for the torts
committed by Carruth. 64
1.

State Law Immunity

Defendants first argue that Trabona has immunity under La. Stat. Ann.
§ 9:2798.1(B). This statute provides that “[l]iability shall not be imposed on
public entities or their officers or employees based upon the exercise or
performance or the failure to exercise their policymaking or discretionary
acts when such acts are within the course and scope of their lawful powers
and duties.” Id. The immunity does not apply to “acts or omissions which
constitute criminal, fraudulent, malicious, intentional, willful, outrageous,
reckless, or flagrant misconduct.”

La. Stat. Ann. § 9:2798.1(C)(2).

Additionally, the Supreme Court of Louisiana has clarified that the immunity
protects discretionary action when that discretion is grounded in social,
economic, or political policy, and does not protect action taken at the
operational level. Fowler v. Roberts, 556 So. 2d 1, 15 (La. 1989).
In determining whether the immunity applies, the Court must first
determine if Trabona had a choice in how to act. Id. Smith argues that
Trabona’s “decisions and actions or omissions . . . were not discretionary,”

64

Id.
33

and therefore the immunity should not apply.65 But Smith’s arguments have
regularly been rejected, with both state and federal courts holding that the
hiring, training, and supervision policies of Louisiana police entities are
discretionary. See, e.g., Smith v. Lafayette Parish Sheriff’s Dept., 874 So. 2d
863, 868 (La. App. 3 Cir. 2004) (“Sheriff Breaux’s hiring/retention policy
was a discretionary act.”); Hoffpauir v. Columbia Cas. Co., No. 12-403, 2013
WL 5934699, at *12 (M.D. La. Nov. 5, 2013) (finding that “the hiring,
training, and supervision policy of the . . . Sheriff’s Department is a
discretionary function”); City of Shreveport, 397 F.3d at 296 (finding hiring,
training, and supervisory policies of police chief to be discretionary). Smith
points to La. Stat. Ann. § 40:2401, which mandates training for peace
officers, but this statute does not require any specific training, and it leaves
the choice of training to the discretion of law enforcement. See Romain v.
Governor’s Office of Homeland Sec., No. 14-660, 2016 WL 3982329, at *1314 (M.D. La. July 22, 2016) (rejecting same argument based on La. Stat. Ann.
§ 40.2401).
Because Smith points to no statute mandating a policy or procedure as
to ACPD’s hiring, training or supervision, the functions are discretionary and

65

R. Doc. 45 at 15.
34

La. Stat. Ann. § 9:2798.1 affords Trabona and Amite City immunity.66 Smith
does not argue that any action by Trabona was “criminal, fraudulent,
malicious, intentional, willful, outrageous, reckless, or flagrant misconduct.”
Thus, La. Stat. Ann. § 9:2798.1(C) does not apply. Therefore, summary
judgment on plaintiff’s state law negligence and negligent hiring, supervision
and training claims against defendants is granted.
2.

Vicarious Liability for Carruth’s Torts

Defendants additionally move for summary judgment on Smith’s
claims asserting that defendants should be liable for Carruth’s torts based on
respondeat superior. Discretionary immunity does not apply to vicarious
liability, and defendants do not argue that it does. See Hoffpauir, 2013 WL
5934699, at *13.
Under Louisiana Civil Code article 2320, an employer is liable for the
torts committed by its employees if, at the time, the employee was acting
within the course and scope of his employment. La. Civ. Code art. 2320;
Baumeister v. Plunkett, 673 So. 2d 994, 996 (La. 1996). In Lebrane v. Lewis,
the Louisiana Supreme Court articulated four factors in considering whether

Defendants do not explicitly argue that the immunity applies to
Smith’s claims against Amite City as well, but the plain language of the
statute indicates that Amite City is immune as well. La. Stat. Ann. §
9:2798.1(A).
35
66

an employer should be held vicariously liable for the torts of its employees:
(1) whether the tortious act was primarily employment rooted; (2) whether
the violence was reasonably incidental to the performance of the employee’s
duties; (3) whether the act occurred on the employer’s premises; and (4)
whether it occurred during the hours of employment. 292 So. 2d 216, 218
(La. 1974). No single factor is dispositive, and liability can be found even if
some of the factors are not met. Plunkett, 673 So. 2d at 997. The focus of the
inquiry is determining “whether the employee’s tortious conduct was ‘so
closely connected in time, place and causation to his employment-duties as
to be regarded a risk of harm fairly attributable to the employer’s business,’”
as compared to “‘conduct motivated by purely personal considerations
entirely extraneous to the employer’s interests.’” Smith, 874 So. 2d at 866
(quoting Lebrane, 292 So. 2d at 218). The “scope of risks attributable to an
employer increases with the amount of authority and freedom of action
granted to the [employee] in performing” his work. Ermert v. Hartford Ins.
Co., 559 So.2d 467, 477 (La. 1990).
The question of course and scope of employment is a mixed question
of law and fact. Russell v. Noullet, 721 So. 2d 868, 871 (La. 1998); Bates v.
Caruso, 881 So. 2d 758, 761 (La. App. 4 Cir. 2004). Each case must be
decided on its specific facts. Id. at 762. Generally, an employee’s actions are
36

within the course and scope of his employment if “the conduct is of the kind
that he is employed to perform, occurs substantially within the authorized
limits of time and space, and is activated at least in part by a purpose to serve
the employer.” Orgeron v. McDonald, 639 So. 2d 224, 226-27 (La. 1994).
That the primary motive of the employee is to benefit himself does not
prevent the tortious act of the employee from falling within the scope of his
employment. Ermert, 559 So. 2d at 477. If the purpose of serving the
employer’s business actuates the employee to any appreciable extent, the
employer is liable. Richard v. Hall, 874 So. 2d 131, 137-38 (La. 2004).
In police cases, Louisiana courts give special weight to the considerable
public trust and authority wielded by police officers in performing the
vicarious liability analysis.

See Doe v. Morris, No. 11-1532, 2013 WL

3933928, at *4 (E.D. La. July 30, 2013) (citing Applewhite v. City of Baton
Rouge, 380 So. 2d 119 (La. App. 1 Cir. 1979)). In Applewhite, the court held
the City of Baton Rouge vicariously liable for a police officer’s rape of a
woman while he was performing duties for the city. The plaintiff in that case
was walking along the highway with companions when a uniformed officer
ordered her into his police car to be taken to jail for vagrancy. Id. at 120. The
officer then parked his car and forced the plaintiff to engage in sex. Id. In a
civil suit brought by the victim, the City of Baton Rouge maintained that the
37

officer’s actions were far removed from the course and scope of his
employment. The court found otherwise, emphasizing that the officer “was
on duty in uniform and armed, and was operating a police unit at the time of
this incident.” Id. The court found significant that the officer “was able to
separate the plaintiff from her companions because of the force and authority
of the position which he held.” Id. The court reviewed Louisiana case law in
the police context and concluded that it consistently held employers
responsible for transgressive police behavior even if the conduct was not
squarely within the officer’s usual duties. Id. (citing Cheatham v. Lee, 277 So.
2d 513 (La. App. 1 Cir. 1973) (holding City of Baton Rouge vicariously liable
for battery committed by police officer who was in uniform and armed but
off duty chaperoning private party outside of city limits); Bourque v. Lohr,
248 So. 2d 901 (La. App. 1 Cir. 1971) (insurer of City of New Iberia cast in
judgment for certain torts committed by an off-duty, uniformed police officer
while using his private vehicle)). The Applewhite court summarized the
position of the Louisiana courts by stating, “[i]n short, . . . where it is found
that a law enforcement officer has abused the ‘apparent authority’ given such
persons to act in the public interest, their employers have been required to
respond in damages.” 380 So. 2d at 122. These cases make clear that officers’
duty status is not determinative of the vicarious liability inquiry.
38

Post-Applewhite, Louisiana courts have continued to focus on abuse of
authority in determining vicarious liability for employees in positions of
power. In Latullas v. State, 658 So. 2d 800 (La. App. 1 Cir. 1995), the
Louisiana First Circuit Court of Appeal held the State of Louisiana liable for
a prison guard’s rape of a prisoner on prison grounds while the guard was in
charge of a prisoner work crew. The court reasoned that the guard was able
to separate the plaintiff from others and commit the rape because of the
authority bestowed upon him by his employer. 658 So. 2d at 804. The court
acknowledged that the rape was “totally unauthorized . . . and motivated by
. . . personal desires.” Id. The court nevertheless found vicarious liability
because the rape occurred while the guard was “acting for his employer in
the control and supervision of inmates, and it was through these duties that
this opportunity arose.” Id. at 804-05.
In a similar vein is Turner v. State, 494 So. 2d 1292 (La. App. 2 Cir.
1986). There, a recruiting officer for the Louisiana National Guard induced
four women to believe that he had the authority to conduct physical exams,
during which he touched them inappropriately, while interviewing them for
induction into the National Guard. Id. at 1296. The court found the State
vicariously liable for the recruiting officer’s acts because the incident was

39

made possible by the apparent authority of the position the officer held with
his employer. Id.
Louisiana Courts have focused on apparent authority in non-law
enforcement cases as well. In Dismuke v. Quaynor, 637 So. 2d 555 (La. App.
2 Cir. 1994), writ denied, 639 So. 2d 1164 (La. 1994), the court affirmed the
finding that Grambling University was vicariously liable for a rape
committed by one of its employees acting as a camp counselor. 637 So. 2d at
562. In doing so, the Court noted that though the employee was “technically
off duty,” the employee used and abused the supervisory authority conferred
on him by the university to get in close proximity with the victim and observe
her until she was alone. Id. at 561-562. See also Harrington v. Louisiana
State Bd. of Elementary & Secondary Educ., 714 So. 2d 845, 851-52 (La. App.
4 Cir. 1998), writ denied sub nom. Harrington v. Veller, 728 So. 2d 1287 (La.
1998) (finding state vicariously liable for rape of student in part because the
employee “abused his position of authority when he raped [the victim]”).
Although the Louisiana Supreme Court has found no vicarious liability
in two police officer cases, the Court has not confronted the issue in the
context presented here. In Brasseaux v. Town of Mamou, the Louisiana
Supreme Court found no vicarious liability for an off-duty officer’s assault.
752 So. 2d 815, 821-23 (La. 2000). There, the officer was drinking at a bar
40

when his friend started a fight. The officer showed his badge only to protect
his friend and himself. Unlike here, there was no finding that the officer in
Brasseaux used his position as a police officer to stage the assault, or that the
officer otherwise abused his authority to create the situation that led to the
harm.

Further, Brasseaux involved a part-time dispatcher who never

performed (except on one day) the usual duties of police officers like
patrolling and making arrests, and the Brasseaux court did not clearly
delineate whether it treated the employee as a police officer or a municipal
employee with less discretion. Id. at 821 (“However, we need not address
that particular finding at this time, for whether his classification is that of a
part-time time dispatcher or a police officer, it is certain that [defendant] was
an employee of the Town of Mamou Police Department.”); see also id. at 824
(“I therefore conclude that [defendant], at the time of the attack, was not a
police officer.”) (Lemmon, J., concurring). See also Russell, 781 So. 2d. 868
(finding no vicarious liability when off-duty officer became caught up in a
brawl at a private gathering).
In this case, on the other hand, Smith testified that Carruth staged the
kidnapping and rape by using the authority and accoutrements of his
position as a police officer. She said that Carruth identified himself as an
officer, displayed his badge, placed her under arrest, handcuffed her, read
41

her her rights, and threatened jail and charges.67 Although defendants
contend that Carruth did not “use his authority or police power” to carry out
his attack on Smith, 68 the Court finds that plaintiff’s evidence at least raises
a genuine dispute of material fact that Carruth used and abused the apparent
authority granted by his position as a police officer to kidnap and rape Smith.
And, the authority to make arrests is an integral police function that imbues
the officer with a public trust. At the same time, this tremendous power
carries the concomitant risk of abuse. That risk, in a context where an officer
uses the power and authority of his position as a police officer to isolate and
subdue a victim, is a risk of harm that a jury could find attributable to the
officer’s employer, which cloaked him with that apparent authority. See
Sampson v. City of New Orleans, No. 04-1052, 2005 WL 14908, at *3 (E.D.
La. Jan. 3, 2005).

67
68

R. Doc. 45-2 at 3-4; R. Doc. 40-10 at 11-13.
R. Doc. 40-1 at 15.
42

IV.

CONCLUSION
For the foregoing reasons, the Court GRANTS summary judgment for

defendants on all of Smith’s federal claims and on Smith’s state law
negligence claims. The Court DENIES summary judgment on Smith’s claims
that defendants are vicariously liable for Carruth’s torts under state law.

1st
New Orleans, Louisiana, this _____ day of March, 2017.

_____________________
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE

43